On April 20, 2017, the New York Court of Appeals issued a brief order continuing former Goldman Sachs programmer Sergey Aleynikov’s eight-year voyage through the state’s and country’s legal systems.  Here’s the issue:  does making a digital copy of misappropriated source code instead of physical copy constitute a “tangible reproduction or representation” of the source code?  

A brief recap:  in July 2015, reported here and here, Aleynikov convinced the state trial court that he was not guilty of charges that he had stolen intellectual property from Goldman.  The decision turned on the word “tangible.”  Because Aleynikov transmitted Goldman’s source code onto an electronic server – in other words, he did not make a physical copy of the source code – he could not be convicted under the statute criminalizing the act of making a “tangible reproduction or representation” of protected material.

Earlier this year in January, the state’s appeals court reversed, finding that “[i]t would be incongruous to allow a defendant to escape criminal liability merely because he made a digital copy of the misappropriated source code instead of printing it onto a piece of paper.”

We are scratching our heads, and we’re not alone.  The high court, which acknowledged that Aleynikov raised “questions of law . . . which ought to be reviewed,” will hopefully shed light.  Stay tuned.